OHIO H.B. 380: ASBESTOS TRANSPARENCY BILL

© Copyright 2013, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers.®

OHIO H.B. 380:ASBESTOS TRANSPARENCY BILL

Rick SchusterVorys, Sater, Seymour and Pease LLP

614.464.5475 | [email protected]


Need for H.B. 380› History of failure to provide defendants

with trust claims and materials› Late production of trust claims and

materials› Numerous motions filed to compel

production of trust claims and materials › Delayed filing of trust claims› Juries denied information needed for

apportionment› National trend not unique to Ohio


Purpose of H.B. 380

› Transparency between tort system and trusts

› Apportionment of liability

› Section 4 of HB 380 contains the findings and intent of the General Assembly


Certification by Plaintiff’s Counsel

› R.C. § 2307.952› 30 days after commencement of discovery› Sworn statement by claimant• identify trust claims made• identify all materials submitted to trust• state date claim made• state whether a request for a deferral was

made› Continuing requirement to update

certification as new materials or claims filed› Failure to comply is a ground to continue trial


Defendant’s Motion to Stay Trial to Require Trust Claim Filing

› R.C. § 2307.953› 75 days prior to trial date› Must include:• Identity of trusts where Plaintiff has not

made a claim but could• Information that supports Defendant’s

motion must be included• Information must be sufficient to meet the

asbestos trust requirements


Plaintiffs’ Production of New Evidence of Exposure that Supports a Claim

› R.C. § 2307.953(B)› Defendant may file a motion to stay

within 7 days of receipt


Plaintiffs’ Options› R.C. § 2307.953(C)› 14 days after motion to stay filed› File the trust claim and submit materials

to court and parties› File opposition on grounds evidence is

insufficient to support the trust claim› File opposition on grounds that cost of

filing exceeds likely recovery› None of these filings constitute a waiver

of attorney-client or work product privilege


Court Must Decide

› R.C. § 2307.953(D)› Has Defendant shown by a preponderance of evidence

that a successful asbestos trust claim could be submitted

› Burden shifts to Plaintiff to show by a preponderance of the evidence that the Defendant’s request should be modified or is insufficient

› Plaintiff has burden to show costs of submitting claim would exceed recovery

› If court determines cost will exceed recovery, then court shall require claimant to file with the court a verified statement of exposure to asbestos products from the trust


Court Shall Stay Proceedings

› R.C. § 2307.953(E)

› If court decides a good faith basis for filing claim with trust, must stay

› Stay in effect until Plaintiff files with trust, and

› Stay in effect until Plaintiff provides filed materials to Defendants


Multiple Diseases

› R.C. § 2307.954(A)

› Ohio is a multiple disease state and each disease is a separate claim

› Plaintiff required to turn over all claims made to asbestos trusts, regardless of disease


Presumptions Created

› R.C. § 2307.954(B)› Trust claim materials presumed:• authentic• relevant• discoverable• not privileged

› Trust claim materials may be introduced at trial, UNLESS exclusion required by rules of evidence


Additional Disclosure

› R.C. § 2307.954(C)

› Defendant may seek additional disclosures

› Defendant may seek information directly from trusts


Sanctions

› R.C. § 2307.954(D)(E)(F)

› Any sanctions allowed in Ohio are available

› Includes vacating a judgment

› One year to vacate judgment


Effective Date

› March 27, 2013

› Applies to any case pending on March 27, 2013 that has not started trial

› Applies to any case filed on or after March 27


Impact of H.B. 380

› RC § 2307.953 motions resulted in settlements

› 84 motions for RC § 2307.952 compliance filed

› Several plaintiff firms provided certification along with required trust materials

› Two plaintiff firms filed constitutional challenges

› Several plaintiff firms requested extra time to respond

Documents

OHIO H.B. 380: ASBESTOS TRANSPARENCY BILL